Alaska's Responses to the Blakely Case

• Publication year: 2007

§ 24 Alaska L. Rev. 1. ALASKA'S RESPONSES TO THE BLAKELY CASE

Alaska Law Review
Volume 24
Cited: 24 Alaska L. Rev. 1

ALASKA'S RESPONSES TO THE BLAKELY CASE

TERESA W. CARNS ^[*]

I. INTRODUCTION

II. ALASKA'S INITIAL RESPONSES

III. TWENTY-FIVE YEARS OF PRESUMPTIVE SENTENCING - 1980 TO 2005

IV. ALASKA'S NEW SENTENCING SYSTEM, PRESUMPTIVE RANGES

V. ANTICIPATED EFFECTS OF THE BILL

A. Reduction of disparities

B. Increased judicial discretion

C. No increase in sentence lengths

D. More suspended sentences accompanied by probation

E. Defense attorney concerns

VI. ACTUAL EFFECTS OF BLAKELY

A. Increased appeals

B. Smart v. State

C. Trial court effects

VII. CONCLUSION

FOOTNOTES

Following the 2004 Supreme Court decision in Blakely v. Washington, states were forced to change their sentencing practices. In the wake of the Blakely decision, Alaska has experienced changes such as new sentencing laws, new appeals, and courts of appeals decisions that have raised new legal issues.

I. INTRODUCTION

The June 24, 2004 United States Supreme Court decision in Blakely v. Washington ^[1] has changed sentencing practices across the United States. The purpose of this brief comment is to describe some of the changes in Alaska that flowed from the decision. These changes have included new sentencing laws, a continuing stream of new appeals, and Alaska Court of Appeals decisions that have further unsettled the legal landscape.

With Justice Antonin Scalia writing for the majority, the Court in Blakely held that a defendant had a Sixth Amendment right to a jury trial on factual findings that would increase the defendant's sentence, rather than allowing judicial decisions at a lower standard of evidence to increase the sentence. ^[2] In her dissent, Justice Sandra Day O'Connor noted that Alaska and several other states had sentencing systems that would be rendered unconstitutional by the majority decision. ^[3] Alaska's presumptive sentencing scheme was contrary to the Supreme Court's decision because it allowed judges to impose aggravated sentences for certain factors of the crime that [*pg 2] had not been presented to a jury for proof beyond a reasonable doubt. ^[4]

An earlier Supreme Court case, Apprendi v. New Jersey, ^[5] set the stage for the Blakely decision. In Apprendi, the Court said: "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." ^[6] The Court's majority decision in Blakely held that the Washington trial judge's decision to impose extra time for an aggravating factor in the defendant's kidnapping case violated the same Sixth Amendment right to a jury trial as had the trial judge's decision in Apprendi. ^[7]

II. ALASKA'S INITIAL RESPONSES

Alaska prosecutors immediately took action in 2004 to comply with the new requirements. They started to present potential aggravating factors to grand juries for indictment. ^[8] If the aggravators were approved by the grand jury, or were added later in the case, prosecutors presented them at the jury trial. ^[9] Most cases continued to be negotiated; in these, prosecutors asked for a Blakely waiver when appropriate. ^[10]

Early on, one judge found Alaska's presumptive sentencing system unconstitutional as a result of Blakely. ^[11] Judge Michael Wolverton in Anchorage said in a 2004 opinion that "the most appropriate resolution of the issues at this juncture, and until the Alaska Legislature has had the opportunity to remedy the myriad concerns raised by Blakely v. Washington (citation omitted), is to declare that Alaska's presumptive sentencing scheme as set forth in Title 12 is unconstitutional." ^[12] Judge Wolverton based his decision [*pg 3] in part on a Utah federal case, United States v. Croxford, ^[13] in which the court said that its only viable option was to treat the U.S. guidelines "as unconstitutional in their entirety . . . and sentence Croxford between the statutory minimum and maximum." ^[14]

On August 4, 2006, the court of appeals vacated Judge Wolverton's decision and remanded the case to the superior court for sentencing. ^[15] The court said:

It is true that Alaska's pre-2005 presumptive sentencing law is flawed in certain respects. Specifically, some of the provisions of the pre-2005 sentencing law do not comply with the right to jury trial . . . . Because Herrmann has not shown that he is prejudiced by any of the Blakely flaws in our pre-2005 presumptive sentencing law, the superior court decided a purely hypothetical controversy when it declared the entire pre-2005 presumptive sentencing law to be unconstitutional. ^[16]

The State's most important response was a new sentencing plan filed at the beginning of the 2005 legislative session. ^[17] In essence, the new law replaced the single presumptive sentences with a range of presumptive sentences for each offense and codified the right to jury trial for alleged aggravators. ^[18] The legislature passed the bill quickly, and it became effective when Governor Murkowski signed it on March 22, 2005. ^[19]

Alaskans varied in their responses to the legislation. The governor's press release said that "[j]udges will have the discretion to weigh the facts and circumstances of individual defendants to determine an appropriate sentence within the presumptive range." ^[20] The Department of Law, chief drafters of the new bill, said that the sentencing ranges adopted by legislators were "in keeping with the spirit of the [U.S.] Supreme Court decision." ^[21] Defense attorneys observed that the new legislation would result in more incarceration for defendants by subjecting them to higher sentences based on less evidence. ^[22] They noted that defendants [*pg 4] would be more reluctant to plead guilty because sentences in negotiated cases would be less certain. ^[23]

III. TWENTY-FIVE YEARS OF PRESUMPTIVE SENTENCING - 1980 TO 2005

Alaska courts began to structure judicial sentencing decisions with one of the supreme court's earliest sentence appeals. ^[24] In State v. Chaney, ^[25] the court required judges to consider the seriousness of the offense, the offender's prior record, likelihood of rehabilitation, protection of the public, harm to the victim and the community, deterrence, community condemnation and reaffirmation of societal norms, and restoration of the victim and the community. ^[26] For the next several years, the court referred frequently to these criteria in its sentencing decisions. ^[27]

In 1978, Alaska's legislature adopted a criminal code paired with a presumptive sentencing scheme that replaced the former indeterminate sentencing system. ^[28] Both the code and the sentencing system took effect on January 1, 1980. ^[29] Derived from [*pg 5] work by the Twentieth Century Fund Task Force on Criminal Sentencing, ^[30] presumptive sentencing called for a combination of structured sentencing and judicial discretion. ^[31]

Presumptive sentencing set a single term that, absent other factors, was presumed to be the appropriate sentence. The new sentences applied to repeat Class B and C (lesser) offenders, to all Class A felons, and to unclassified felons convicted of sexual offenses. ^[32] Presumptive sentences for subsequent felony offenders in all categories also had presumptive sentences specified by law, with statutory aggravators and mitigators available to adjust the sentences. ^[33]

First offenders convicted of Class B and C felonies did not have presumptive sentences, ^[34] and they were eligible for discretionary parole after they had served one-third of the active [*pg 6] time imposed. ^[35] The legislation eliminated discretionary parole for those sentenced presumptively, at least during the period attributable to the presumptive sentence. ^[36] The legislature made further changes that took effect in 1982 ^[37] and 1983-1984. ^[38]

Case law ^[39] quickly built on the presumptive sentencing structure to set limits to the possible range of sentences for most first offenders. ^[40] The legislation also codified the Chaney criteria. ^[41] Subsequent case law required judges to consider these factors at most points when they sentenced, whether they were looking at the magnitude of difference made by an aggravator or mitigator, at sentencing on a probation revocation, or at imposing the original sentence. ^[42]

The 1980 sentencing statute's opening "Declaration of Purpose" stated that "[t]he legislature finds that the elimination of unjustified disparity in sentences and the attainment of reasonable uniformity in sentences can best be achieved through a sentencing framework fixed by statute as provided in this chapter." ^[43] Later [*pg 7] decisions from the court of appeals affirmed these purposes of the new sentencing scheme. ^[44] The intent was to eliminate both the ethnicity-related disparities found in sentencing studies in the 1970s and the disparities based on the identity of the judge. ^[45] Reviews of felony sentencing practices in 1980, ^[46] 1984-1987, ^[47] and 1999 ^[48] showed that presumptive sentencing had apparently been successful at eliminating the disparities associated with the ethnicities of presumptively sentenced defendants. ^[49] However, the 1999 data showed disparities for Black and Native defendants in non-presumptive drug sentences. ^[50]

IV. ALASKA'S...